“We’ll see a lot of lawsuits,” said Kathay Feng, the national redistributive director of the good government group Common Cause, chuckling at a question about how much litigation there will be this redistribution cycle. Redistribution, she said, “is always fertile ground for people who are dissatisfied with the results.”
But the trial starts well before the results are clear, and what is unusual this year is the focus on exactly what data is being used and when it will be released. Data from the ten-year census has been delayed for several months, partly due to the pandemic and the Trump administration̵
Distribution data – the top-line numbers that determine the number of housing spaces each state gets – were legally required to be released by December 31, 2020, but they arrived just Monday. Redistribution data, the more detailed data that includes demographic information over small geographic areas, is not expected until later this summer.
This delay has lifted the redistribution process in dozens of states that have deadlines that are incompatible with the new release calendar, which has sent states encrypting to the courts for relief.
The delay can also have a downstream effect on lawsuits that challenge any short lines once they are drawn.
“There is a decent chance that a number of them will not be resolved before the 2022 election,” said Jason Torchinsky, general counsel for the National Republican Redistricting Trust. “So the courts will either basically have to say ‘you have filed late and I can not issue any rulings affecting 2022,’ or a court will really have to rush to change something if it is going to affect 2022.”
So far, California has requested and received an extension of redistribution from state courts last year, while Michigan officials redistributed courts recently asked courts to expand their redistribution window. Other states have sued the Census Bureau for trying to force an earlier release of redistribution data.
Ohio was the first state to file a lawsuit that was dismissed by federal district court, a decision that the state appealed. Alabama also filed a federal lawsuit challenging both the release plan and the use of “differentiated privacy,” a process that would obscure demographic data at small geographic levels. The Census Bureau says it is necessary to protect a single person from being identified, but card makers fear it makes the data functionally useless.
Other states are considering using data other than the number of decades to draw their map lines – including data from the American Community Survey, another Census Bureau product that is independent of the number of decades and is based on a survey instead of a hard count , which would almost certainly create legal challenges.
“It’s not that the ACS data itself is wrong, but it’s like taking a pair of sunglasses when you need to read it in small print,” Feng said. “It will not give you the sharp focus you need.”
New York Gov. Andrew Cuomo also said he was “looking at legal options” after his state lost an extra house on Monday of 89 people. But courts have not previously acted on similar cases, redistribution lawyers say, while remarks about the pandemic have introduced a new dimension of uncertainty.
“Courts or other trials have been created to treat this data as authoritative,” said Walter Olson, a senior fellow at the conservative Cato Institute who was named president of Maryland Gov. Larry Hogan’s Advisory Redistribution Commission. “If I were a judge, I would be very reluctant to open a door … [that] will inevitably invite litigation and litigation in other states and other census cycles for a variety of reasons. ”
Going forward, major Supreme Court rulings handed down over the past decade will shape the challenges for the cards themselves: Shelby County against the proprietor, which effectively ended the requirement that some states have short lines cleared by the Department of Justice or federal judges to ensure that there is no racial discrimination; and Rucho v. Common Cause, which held that the federal judiciary had no jurisdiction to politicize biased gerrymandering, in contrast to racial gerrymandering.
“I think the decision in Shelby County is a real obstacle,” former Attorney General Eric Holder, now in charge of the Democratic Party’s redistribution efforts, said in a briefing Tuesday. “It removes a legal tool that the Biden Justice Department may have to protect voters.”
Complainants can still file racial treatment cases in federal courts, but the success of state-based partisan card challenges over the past decade could point to the future of redistribution cases.
Thirty states have constitutions or laws with clauses protecting “free and equal” elections that anti-gerrymandering advocates have used to fight partisan cards in several states, said Ben Williams, a redistribution specialist at the Non-Partisan National Conference for state legislators. “I could imagine you want to see more of it [those challenges] in this decade and it will be the biggest change. And then it just becomes a question of, are courts favorable to these claims? ”
Democrats have begun filing redistribution cases early. Marc Elias, the party’s most prominent election lawyer, and the National Red Districting Action Fund, an arm of the Holder-led National Democratic Red Districting Committee, supported three lawsuits in Pennsylvania, Minnesota and Louisiana – states where Republicans control one or both houses of the legislature, but the Democrats are governor. The cases called on the courts to step in if (or when) there is a dead end in the card-making process.